MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Public Health and Welfare; Judiciary, Division A
By: Senator(s) Jackson (15th)
AN ACT TO CREATE SECTION 41-41-50, MISSISSIPPI CODE OF 1972, TO ESTABLISH THE "PARENTAL INVOLVEMENT ENHANCEMENT ACT"; TO CREATE SECTION 41-41-50.1, MISSISSIPPI CODE OF 1972, TO EXPRESS THE LEGISLATURE'S INTENT TO STRENGTHEN A PARENT'S OR LEGAL GUARDIAN'S INVOLVEMENT IN A MINOR'S DECISION TO HAVE AN ABORTION; TO AMEND SECTION 41-41-51, MISSISSIPPI CODE OF 1972, TO DEFINE ADDITIONAL TERMS RELEVANT TO THIS ACT; TO AMEND SECTION 41-41-53, MISSISSIPPI CODE OF 1972, TO PROHIBIT THE PERFORMING OF AN ABORTION UPON A WOMAN UNDER THE AGE OF 18 OR A WOMAN WITH AN INTELLECTUAL DISABILITY WITHOUT THE NOTARIZED WRITTEN CONSENT OF THE WOMAN'S PARENTS OR LEGAL GUARDIAN; TO RESTRICT THE VENUE WHEREIN A MINOR OR INTELLECTUALLY DISABLED WOMAN MAY SEEK A JUDICIAL WAIVER TO THE REQUISITE CONSENT; TO CREATE SECTION 41-41-54, MISSISSIPPI CODE OF 1972, TO REQUIRE THE PHYSICIAN TO VERIFY A PERSON'S IDENTITY AND RELATIONSHIP TO THE MINOR OR INTELLECTUALLY DISABLED WOMAN BEFORE ACCEPTING THE PERSON'S CONSENT TO THE WOMAN'S ABORTION; TO AMEND SECTION 41-41-55, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A MENTAL HEALTH EVALUATION OF THE MINOR OR INTELLECTUALLY DISABLED WOMAN PRIOR TO DECIDING HER REQUEST TO WAIVE THE REQUISITE CONSENT; TO AMEND SECTION 41-41-57, MISSISSIPPI CODE OF 1972, TO REQUIRE A PHYSICIAN TO INFORM CERTAIN PERSONS FOLLOWING THE PERFORMING OF A MEDICAL EMERGENCY ABORTION UPON THE MINOR OR INTELLECTUALLY DISABLED WOMAN; TO AMEND SECTION 41-41-63, MISSISSIPPI CODE OF 1972, TO PROVIDE HOW THIS ACT SHALL BE CONSTRUED AND TO PROVIDE FOR THE LEGISLATURE'S RIGHT TO DEFEND A CHALLENGE TO THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 41-41-50, Mississippi Code of 1972:
41-41-50. This act may be cited as the "Parental Involvement Enhancement Act."
SECTION 2. The following shall be codified as Section 41-41-50.1, Mississippi Code of 1972:
41-41-50.1. Legislative findings and purposes. (1) The Legislature of the State of Mississippi finds that:
(a) Immature minors often lack the ability to make fully informed choices that take into account both immediate and long-range consequences.
(b) The medical, emotional and psychological consequences of abortion are sometimes serious and can be lasting, particularly when the patient is immature.
(c) The capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not necessarily related.
(d) Parents ordinarily possess information essential to a physician's exercise of his or her best medical judgment concerning the child.
(e) Parents who are aware that their minor daughter has had an abortion may better ensure that she receives adequate medical attention after her abortion.
(f) Parental consultation is usually desirable and in the best interests of the minor.
(2) The Legislature's purposes in enacting this enhancement to the State of Mississippi's parental consent law are to further the important and compelling state interests of:
(a) Protecting minors against their own immaturity.
(b) Fostering family unity and preserving the family as a viable social unit.
(c) Protecting the constitutional rights of parents to rear children who are members of their household.
(d) Reducing teenage pregnancy and abortion.
(e) In light of the foregoing statements of purpose, allowing for judicial bypasses of the parental consent requirement to be made only in exceptional or rare circumstances.
SECTION 3. Section 41-41-51, Mississippi Code of 1972, is amended as follows:
41-41-51. For purposes of Sections 41-41-50 through 41-41-63, the following definitions shall apply:
* * *
(a) "Abortion" means the use of any instrument, medicine, drug or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant, with intent other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.
(b) "Consent" means, in the case of a pregnant woman who is less than eighteen (18) years of age, a notarized written statement signed by the pregnant woman and her mother, father or legal guardian declaring that the pregnant woman intends to seek an abortion and that her mother, father or legal guardian consents to the abortion; or, in the case of a pregnant woman who is an intellectually disabled person, a notarized written statement signed by the pregnant woman's guardian declaring that the guardian consents to the performance of an abortion upon the pregnant woman.
(c) "Emancipated minor" means any minor who is or has been married or has by court order or otherwise been freed from the care, custody and control of her parents;
(d) "Intellectually disabled" means a "person with mental illness" or a "person with an intellectual disability" as defined in Section 41-41-61 and who has had a guardian appointed for her under Section 93-13-111.
(e) "Medical emergency" means a condition that, on the basis of the physician's good-faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.
(f) "Minor" means any person under the age of eighteen (18) years;
(g) "Neglect" means the failure of a parent or legal guardian to supply a minor with necessary food, clothing, shelter or medical care when reasonably able to do so or the failure to protect a minor from conditions or actions that imminently and seriously endanger the minor's physical or mental health when reasonably able to do so.
(h) "Physical abuse" means any physical injury intentionally inflicted by a parent or legal guardian on a minor.
(i) "Physician," "attending physician" or "referring physician" means any person licensed to practice medicine in this state. The term includes medical doctors and doctors of osteopathy.
(j) "Pregnant woman" means a woman who is pregnant and is less than eighteen (18) years of age and not emancipated, or who has been adjudged a "person with mental illness" or a "person with an intellectual disability" as defined in Section 41-41-61 and who has had a guardian appointed for her under Section 93-13-111.
(k) "Sexual abuse" means any sexual conduct or sexual penetration as defined in Section 97-3-97 and committed against a minor by a parent or legal guardian.
SECTION 4. Section 41-41-53, Mississippi Code of 1972, is amended as follows:
41-41-53. (1) Except as otherwise provided in subsections (2) and (4) of this section, no person shall perform an abortion upon an unemancipated minor unless he or his agent first obtains the notarized written consent of the unemancipated minor and either both parents or the legal guardian of the minor. In the case of a pregnant woman who is an intellectually disabled person, a person shall first obtain the notarized written consent of her legal guardian.
(2) (a) If the minor's parents are divorced or otherwise unmarried and living separate and apart, then the notarized written consent of the unemancipated minor and the parent with primary custody, care and control of such minor shall be sufficient.
(b) If the minor's parents are married and one (1) parent is not available to the person performing the abortion in a reasonable time and manner, then the notarized written consent of the unemancipated minor and the parent who is available shall be sufficient.
(c) If the minor's pregnancy was caused by sexual intercourse with the minor's natural father, adoptive father or stepfather, then the notarized written consent of the unemancipated minor and the minor's mother shall be sufficient.
(3) The physician shall keep the notarized written consent of the parent or legal guardian in the medical file of the pregnant woman for five (5) years past the majority of the pregnant woman, but in no event less than seven (7) years.
(4) A minor who elects not to seek or does not obtain consent from her parents or legal guardian under this section may petition, on her own behalf or by next friend, the chancery court in the county in which the minor resides * * * for a waiver of the consent requirement of this section pursuant to the procedures of Section 41-41-55.
SECTION 5. The following shall be codified as Section 41-41-54, Mississippi Code of 1972:
41-41-54. Proof of identification and relationship to a pregnant woman. (1) The physician shall obtain from the parent or legal guardian entitled to consent:
(a) Government-issued proof of the identity of the parent or legal guardian; and
(b) Written documentation that establishes that the parent or legal guardian is the lawful parent or legal guardian of the pregnant woman.
(2) The physician shall keep a copy of the proof of identification of the parent or legal guardian and the written documentation that establishes the relationship of the parent or legal guardian to the pregnant woman in the medical file of the pregnant woman for five (5) years past the majority of the pregnant woman, but in no event less than seven (7) years.
(3) A physician receiving parental consent under this section shall execute for inclusion in the medical record of the pregnant woman an affidavit stating: "I, (insert name of physician), certify that according to my best information and belief, a reasonable person under similar circumstances would rely on the information presented by both the pregnant woman and her parent or legal guardian as sufficient evidence of identity and relationship."
SECTION 6. Section 41-41-55, Mississippi Code of 1972, is amended as follows:
41-41-55. (1) The requirements and procedures under Sections 41-41-50 through 41-41-63 shall apply and are available to pregnant women whether or not they are residents of this state.
(2) Mental health evaluation. Prior to court proceedings addressing a petition for judicial waiver, the court may require the pregnant woman to participate in an evaluation and counseling session with a mental health professional from the State Department of Health or a staff member from the State Department of Mental Health, or both. Such evaluation shall be confidential and scheduled expeditiously.
(a) Such evaluation and counseling session shall be for the purpose of developing trustworthy and reliable expert opinion concerning the pregnant woman's sufficiency of knowledge, insight, judgment and maturity with regard to her abortion decision in order to aid the court in its decision and to make the state's resources available to the court for this purpose. Persons conducting such sessions may employ the information and printed materials referred to in Section 41-41-35 in examining how well the pregnant woman is informed about pregnancy, fetal development, abortion risks and consequences, and abortion alternatives, and should also endeavor to verify that the pregnant woman is seeking an abortion of her own free will and is not acting under coercion, intimidation, threats, abuse, undue pressure, or extortion by any other persons.
(b) The results of such evaluation and counseling shall be reported to the court by the most expeditious means, commensurate with security and confidentiality, to assure receipt by the court prior to a hearing on the pregnant woman's petition.
(3) The pregnant woman may participate in proceedings in the court on her own behalf. The court shall advise her that she has a right to court-appointed counsel and shall provide her with such counsel upon her request or if she is not already adequately represented. The court shall appoint a guardian ad litem for her. Any guardian ad litem appointed under this section shall act to maintain the confidentiality of the proceedings.
(4) Court proceedings under this section shall be confidential and anonymous and shall be given such precedence over other pending matters as is necessary to insure that the court may reach a decision promptly, but in no case shall the court fail to rule within seventy-two (72) hours of the time the application is filed. If for any reason the court fails to rule within seventy-two (72) hours of the time the application is filed, the minor may proceed as if the consent requirement of Section 41-41-53 has been waived.
(5) Consent shall be waived if the court finds by clear and convincing evidence either:
(a) That the minor or intellectually disabled pregnant woman is mature and well-informed enough to make the abortion decision on her own; or
(b) That performance of the abortion would be in the best interests of the minor or intellectually disabled woman.
(6) A court that conducts proceedings under this section shall issue written and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence be maintained.
(7) An expedited confidential and anonymous appeal shall be available to any minor or intellectually disabled woman to whom the court denies a waiver of consent. The Mississippi Supreme Court shall issue promptly such rules and regulations as are necessary to insure that proceedings under Sections 41-41-50 through 41-41-63 are handled in an expeditious, confidential and anonymous manner.
(8) No filing fees shall be required of any minor or intellectually disabled woman who avails herself of the procedures provided by this section.
SECTION 7. Section 41-41-57, Mississippi Code of 1972, is amended as follows:
41-41-57. (1) Sections 41-41-50 through 41-41-63 shall not apply when, in the best clinical judgment of the physician on the facts of the case before him, a medical emergency exists that so complicates the pregnancy as to require an immediate abortion. A physician who does not comply with Sections 41-41-53 and 41-41-55 by reason of this exception shall state in the medical record of the abortion the medical indications on which his judgment was based. However, the attending physician shall, within twenty-four (24) hours after completion of the abortion, notify one of the parents or the legal guardian of the minor or intellectually disabled woman in the manner provided in this section that a medical emergency abortion was performed on the minor or intellectually disabled woman and of the circumstances that warranted invocation of this section.
(2) Unless the minor or intellectually disabled woman gives notice of her intent to seek a judicial waiver pursuant to Section 41-41-55, the attending physician shall verbally inform the parent or legal guardian of the minor or intellectually disabled woman within twenty-four (24) hours after the performance of a medical emergency abortion that an abortion was performed on the minor or intellectually disabled woman. The attending physician shall also inform the parent or legal guardian of the basis for the certification of the physician required under subsection (1) of this section, and provide details regarding any additional risks to the minor or intellectually disabled woman. The attending physician shall also send a written notice of the performed abortion by certified mail to the last-known address of the parent or legal guardian, restricted delivery, return receipt requested.
(3) If the minor or intellectually disabled woman gives notice to the attending physician of her intent to seek a judicial waiver pursuant to Section 41-41-55, the physician shall file a notice with any judge of a court of competent jurisdiction that the minor has given such notice and shall provide the information the physician would have been required to provide the parent under subsection (2) of this section if the minor or intellectually disabled woman had not given notice of her intent to seek a judicial waiver.
(4) The court shall expeditiously schedule a confidential conference with notice to the minor or intellectually disabled woman and the physician. If the minor or intellectually disabled woman is able to participate in the proceedings, the court shall advise her that she has the right to court-appointed counsel and shall, upon her request, provide the minor or intellectually disabled woman with such counsel. If the minor or intellectually disabled woman is unable to participate, the court shall appoint counsel on her behalf.
(5) After an appropriate hearing, the court, taking into account the medical condition of the minor or intellectually disabled woman, shall set a deadline by which she must file a petition or motion pursuant to Section 41-41-55. The court may subsequently extend the deadline in light of the pregnant woman's medical condition or other equitable considerations. If the minor or intellectually disabled woman does not file a petition or motion by the deadline, either in that court or in another court of competent jurisdiction with a copy filed in that court, the court shall direct that the court clerk provide the notice to a parent or legal guardian.
SECTION 8. Section 41-41-63, Mississippi Code of 1972, is amended as follows:
41-41-63. (1) If any provision, word, phrase or clause of Sections 41-41-50 through 41-41-63 or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the provisions, words, phrases, clauses or application of Sections 41-41-50 through 41-41-63 which can be given effect without the invalid provision, word, phrase, clause or application, and to this end the provisions, words, phrases and clauses of Sections 41-41-51 through 41-41-63 are declared to be severable.
(2) Nothing in this act shall be construed as creating or recognizing a right to abortion. It is not the intention of this law to make lawful an abortion that is unlawful as of June 30, 2012.
(3) The Legislature, by joint resolution, may appoint one or more of its members who sponsored or co-sponsored this act, as a matter of right and in his or her official capacity, to intervene to defend this law in any case in which its constitutionality is challenged.
SECTION 9. This act shall take effect and be in force from and after July 1, 2012.